Always pay attention when the Department of Justice becomes enthusiastic about a long-neglected statute. (The federal False Claims Act was dormant for almost a century). Here is a sound, short article by Professor Peter J. Henning of Wayne State University Law School on a “new toy” for the Government: U.S. Finds Fresh Use for Seldom-Used Statute in Subprime Cases. In discussing the Financial Institutions Reform, Recovery, and Enforcement Act (or “FIRREA”), the federal law enacted in response to the savings-and-loan crisis, Professor Henning notes: Firrea is not just a penalty provision, however, because it also authorizes the Justice Department to pursue civil investigations into potential violations. Rather than just using it…

In the trial of former SAC hedge fund manager Mathew Martoma, the dispute over getting kicked out of Harvard Law School is worth noting for what evidence we have juries consider at white-collar trials and what we don’t: In 1999, Mr. Martoma was expelled from Harvard for creating a false transcript when he applied for a clerkship with a federal judge, court papers unsealed on Thursday showed. Mr. Martoma used a computer program to change several grades from B’s to A’s, including one in criminal law, and then sent the forged transcript to 23 judges as part of the application process. Then, during a Harvard disciplinary hearing to determine whether…

A good summary by Peter Henning, here — DOJ Financial Crisis Cases? — about possible future cases arising from the financial crisis and the Government’s use of a FIRREA provision. In part: But pursuing criminal cases from the financial crisis gets increasingly difficult, especially against individuals, because unlike a good bottle of wine, evidence does not age well. Memories dim and the chance of finding the “smoking gun” e-mail or recording that can help implicate a defendant in a fraudulent scheme becomes less likely with the passage of time. Mr. Holder will more likely pursue charges under a civil statute that has become the Justice Department’s favorite tool of late against…

If you are in the New York area, this is an excellent source of free CLE: Network of Trial Law Firms Financial Services CLE Supercourse When? Friday, September 20, when experienced financial services practitioners from across the U.S. and Canada convene in New York City. Breakfast and lunch at the City Bar Building (44th St. near Sixth Ave.) are included. Presentations are short (20 minutes each). Sign-up? on-line. Why? I admit it — I’m speaking (actually, I’m leading a breakout session on “White-Collar Crime.”). Topics: Litigating against FINRA and the SEC 18 USC 1519: The Changing Face of Obstruction Traditional and Alternative Products: Suitability and Supervisory Issues FINRA Arbitration –…

One hopes that they would be allowed to self-surrender — http://www.mainjustice.com/2013/08/09/arrests-of-two-jpmorgan-employees-in-london-said-to-be-imminent/ — and not be forced into a media “perp walk.”

Mr. Bharara’s comments are measured, but a prosecutorial campaign in the media is always disquieting (as a defendant’s media campaign can be troubling): Prosecutor Hits The Media Trail. And, although it’s true that “sometimes it’s the case that conduct is so pervasive and there’s so much that shouldn’t be going on that is going on, that the only way that justice can be done is by indicting the entire institution,” very few American businesses — even those with some very bad apples —are actually run as criminal enterprises. Rather, the threat of a company indictment is often simply a tool to achieve other prosecutorial ends.